7 Things Media Should Know About The Third Undercover Attempt To Smear Planned Parenthood

A third video deceptively attacking Planned Parenthood has been released, and, like the previous two, the highly-edited video shows no evidence that Planned Parenthood clinics have broken any laws by allowing women to voluntarily and safely donate fetal tissue from abortions. Media should know seven key facts about the video, including that the group behind it may have obtained the footage illegally; that the video features a lab technician who admits PPFA only receives legal reimbursement for actual costs; and that the video is largely about a separate for-profit research tissue supply company.

Center for Medical Progress Claims Planned Parenthood Is Participating In "Black Market In Baby Parts." In a video released on July 28 as part of their "Human Capital Project," The Center For Medical Progress (CMP) claimed that Planned Parenthood is engaging in a "black market in baby parts" and using an "illicit pricing structure" to profit from fetal tissue donations. According to the organization's press release:

The first episode in a new documentary web series features a woman who once worked in Planned Parenthood clinics describing the profit motive involved in Planned Parenthood's sale of aborted fetal body parts, and includes new admissions from top-level Planned Parenthood leadership about the illicit pricing structure.

The "Human Capital" documentary web series is produced by The Center for Medical Progress and integrates expert interviews, eyewitness accounts, and real-life undercover interactions to tell the story of Planned Parenthood's commercial exploitation of aborted fetal tissue. Episode 1, "Planned Parenthood's Black Market in Baby Parts," launches today at: https://www.youtube.com/watch?v=Xw2xi9mhmuo

Episode 1 introduces Holly O'Donnell, a licensed phlebotomist who unsuspectingly took a job as a "procurement technician" at the fetal tissue company and biotech start-up StemExpress in late 2012. "I thought I was going to be just drawing blood, not procuring tissue from aborted fetuses," says O'Donnell, who fainted in shock on her first day of work in a Planned Parenthood clinic when suddenly asked to dissect a freshly-aborted fetus during her on-the-job training.

For 6 months, O'Donnell's job was to identify pregnant women at Planned Parenthood who met criteria for fetal tissue orders and to harvest the fetal body parts after their abortions. O'Donnell describes the financial benefit Planned Parenthood received from StemExpress: "For whatever we could procure, they would get a certain percentage. The main nurse was always trying to make sure we got our specimens. No one else really cared, but the main nurse did because she knew that Planned Parenthood was getting compensated." [The Center for Medical Progress, 7/28/15]

Latest Video Again Shows NothingIllegal. Like the two deceptively-edited videos CMP has already released, this latest "documentary" does not include any evidence of illegal activity on the part of Planned Parenthood. Instead, the video once again features strategically-edited conversations that merely show that the organization is being reimbursed for costs associated with the procurement of fetal tissue, which federal law allows. [Media Matters for America, 7/14/15; Media Matters for America, 7/21/15]

1. "Procurement Technician" In Latest Video Admits On Camera That Planned Parenthood Is Only Reimbursed For Actual Costs

"Procurement Technician" In Edited Video: Planned Parenthood Reimbursed For Donations "Because We Pay Them To Use Their Facilities." At the beginning of this Human Capital Project video (the third video released by The Center for Medical Progress), Holly O'Donnell, a former staff member of for-profit biomedical procurement company StemExpress, admitted that Planned Parenthood was being reimbursed for costs associated with the fetal tissue donation procurement process in accordance with federal law. Speaking about the process, O'Donnell explained that StemExpress "partners with Planned Parenthood and they get part of the money because we pay them to use their facilities and they get paid from it" (emphasis added):

O'DONNELL: StemExpress is a company that hires procurement techs to draw blood and dissect dead fetuses and sell the parts to researchers. They partner with Planned Parenthood and they get part of the money because we pay them to use their facilities and they get paid from it. They get some kind of benefit. [The Center for Medical Progress, 7/28/15]

2. CMP May Have Obtained Their Footage Illegally

Portions Of The Third Video May Have Been Filmed In California, Where Secret Recording Is A Crime. According to the Digital Media Law Project, California law makes it a crime to secretly record someone without their consent when the person being filmed has "an objectively reasonable expectation that no one is listening in or overhearing the conversation." The third video released by CMP on July 28 included undercover footage of a doctor identified as "Katherine Sheehan, Medical Director emerita of Planned Parenthood of the Pacific Southwest in San Diego." It is unclear where Sheehan was filmed, but if it was recorded where Sheehan had a "reasonable expectation" of privacy, CMP could potentially be criminally liable under the law. [Digital Media Law Project, accessed 7/28/15; The Center for Medical Progress, 7/28/15]

RH Reality Check: Earlier Videos Also Potentially "Violated A Host Of Laws," And Third Video May Violate Patient Privacy. In a review of the first two deceptive videos released by CMP, RH Reality Check noted that at least one of CMP's previous videos was filmed in California, and the second likely was in part. In addition, they noted Planned Parenthood's concern that some footage was taken in a "highly sensitive area in a clinic where tissue is processed after abortion procedures," which "would be an extremely serious invasion of our patients' privacy and dignity." Portions of that footage may have been featured in the third film. From RH Reality Check (emphasis added):

CMP videotaped the conversations with Dr. Deborah Nucatola and Dr. Mary Gatter while they were each engaged in private discussions in restaurants. Nucatola's conversation took place in California; although the location of Gatter's is as yet unknown, she lives and works in California, which suggests that her meeting was also in the state. This fact is incredibly important, because it's very likely that CMP violated California's two-party consent wiretapping law.

[...]

Furthermore, any that were recorded in Connecticut, Florida, Hawaii, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, or Washington raise similar concerns, as these states also require that all parties consent to most recordings.

In addition to likely violating California's two-party consent statute, there are serious questions about CMP's invasions of provider and patient privacy. In a letter sent by Planned Parenthood counsel to the House Energy and Commerce Committee, Planned Parenthood disclosed it believed that "on at least one occasion a representative from Biomax was shown a highly sensitive area in a clinic where tissue is processed after abortion procedures." The letter continues, "[W]hile this work is standard and essential during any abortion procedure, any filming in such an area would be an extremely serious invasion of our patients' privacy and dignity." [RH Reality Check, 7/21/15]

New York Times: Researchers Buy From "Middlemen" Who Reimburse Abortion Providers For Donation Costs Before Selling To Researchers "For Higher Prices." The New York Times reported that companies like those discussed in The Center For Medical Progress' videos are the "middlemen" in the supply chain of fetal tissue destined for vital medical research. The article outlined how these companies procure fetal tissue from abortion providers such as Planned Parenthood and reimburse them for associated expenses related to donation prior to reselling to researchers with "higher prices that reflect the processing":

Fetal tissue can be used only with the consent of the woman having an abortion. Some researchers receive the tissue from abortion clinics at their own institutions, or from tissue banks maintained by some universities. Many buy the tissue from companies that act as middlemen. Those companies pay small fees, usually $100 or less a specimen, to abortion providers like Planned Parenthood, who say they charge only what they need to cover their expenses. The companies then process the tissue and sell it to researchers for higher prices that reflect the processing.

The fees, which can run to thousands of dollars for a tiny vial of cells, do not break the law, according to Arthur Caplan, the director of the division of medical ethics at NYU Langone Medical Center. [The New York Times, 7/27/15]

4. Latest Video Cherry-Picks From Previous Deceptively-Edited Videos

Documentary Relies On First Two Deceptively-Edited Videos To Leave Out Crucial Context. This video is the third entry in a series released by The Center for Medical Progress (CMP) and relies heavily on the first two videos -- both of which were found to have been deceptively-edited in order to leave out crucial context. The first was a July 14 video, which relied on strategic edits to falsely claim Planned Parenthood Federation of America's Senior Director of Medical Services Dr. Deborah Nucatola had discussed how the organization "sells the body parts of aborted fetuses." A second video released on July 21 similarly claimed to have recorded a Planned Parenthood official "haggling over" prices for fetal tissue donations and offering to change abortion procedure techniques "to get more intact fetuses." The full, unedited footage of both videos debunked CMP's claims, showing the Planned Parenthood officials explaining that any variation in the abortion procedure is done pursuant to medical advice and patients are not put at additional risk. The unedited video also showed that the compensation being discussed referred to legal reimbursement for costs associated with tissue donation. [Media Matters for America, 7/14/15; Media Matters for America, 7/21/15]

GOP Lawmakers Supported Legalizing Fetal Tissue Donations. The Huffington Post reported that Congress lifted a ban on fetal tissue donation for medical research back in 1993. According to the report, current Senate Majority Leader Mitch McConnell (R-KY) was one of the Republicans who voted to legalize the donations, as did Reps. Lamar Smith (R-TX) and Fred Upton (R-MI), "all of whom have condemned Planned Parenthood in the past two weeks for its involvement in the practice." [Huffington Post, 7/24/15]

6. It Is Legal To Accept Payment For Fetal Tissue To Offset "Reasonable Expenses"

Federal Law Allows For Donations Of Fetal Tissue With Consent. Federal law regarding the use of human fetal tissue does not prohibit its use for research purposes. [Title 42 U.S. Code § 289g-2, Accessed 7/14/15]

Factcheck.Org: The Law "Excludes The Types Of Costs ... Discussed In The Video." As Factcheck.org explained, the reimbursement for actual costs that are discussed are legal:

The "sale" of organs, both adult and fetal, for transplantation is indeed illegal, but donation of tissue -- both from aborted fetuses and from adults -- is not. And payment for "reasonable" costs is also allowed under the law.

The video itself highlights a portion of title 42 of the U.S. code, which reads: "It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce." The law does include fetal tissue in its definitions. It says that the term "valuable consideration" doesn't include "reasonable payments" for removal, transportation, preservation and other associated costs.

In 1993, a law pertaining to federally funded NIH research was enacted that allows donation of fetal tissue from induced abortions if certain criteria are met. These include that the woman donating is not aware of the recipients of the tissue, and that the abortion timing, procedures or method itself would not be altered for the sole purpose of obtaining the tissue.

The 1993 law also says that it is unlawful "for any person to knowingly acquire, receive, or otherwise transfer any human fetal tissue for valuable consideration if the transfer affects interstate commerce." The law again excludes the types of costs Nucatola discussed in the video: "The term 'valuable consideration' does not include reasonable payments associated with the transportation, implantation, processing, preservation, quality control, or storage of human fetal tissue."

The American Medical Association echoes this in its ethical guidelines on the issue: "Fetal tissue is not provided in exchange for financial remuneration above that which is necessary to cover reasonable expenses." [Factcheck.org, 7/21/15]

7. Experts Agree "There's No Way There's A Profit" For Planned Parenthood At Rates It Is Reimbursed At

Biorepository Experts: "There's No Way There's A Profit At" Prices Discussed In Video. A July 21 post from FactCheck.org examined The Center for Medical Progress' claim that Planned Parenthood is profiting from the fetal tissue donations and called it untrue. Citing the Planned Parenthood official in the first video "repeatedly saying its clinics want to cover their costs, not make money, when donating fetal tissue from abortions for scientific research," FactCheck.org quotes "biorepository" experts explaining that the fees discussed in the video would not generate "a profit at that price":

We also asked experts in the use of human tissue for research about the potential for profit. Sherilyn J. Sawyer, the director of Harvard University and Brigham and Women's Hospital's "biorepository," told us that "there's no way there's a profit at that price." She continued in an email:

Sawyer, July 20: In reality, $30-100 probably constitutes a loss for [Planned Parenthood]. The costs associated with collection, processing, storage, and inventory and records management for specimens are very high. Most hospitals will provide tissue blocks from surgical procedures (ones no longer needed for clinical purposes, and without identity) for research, and cost recover for their time and effort in the range of $100-500 per case/block. In the realm of tissues for research $30-100 is completely reasonable and normal fee.

Jim Vaught, president of the International Society for Biological and Environmental Repositories and formerly the deputy director of the National Cancer Institute's Office of Biorepositories and Biospecimen Research, told us in an email that "$30 to $100 per sample is a reasonable charge for clinical operations to recover their costs for providing tissue." In fact, he said, the costs to a clinic are often much higher, but most operations that provide this kind of tissue have "no intention of fully recovering [their] costs, much less making a profit."

Carolyn Compton, the chief medical and science officer of Arizona State University's National Biomarkers Development Alliance and a former director of biorepositories and biospecimen research at the National Cancer Institute, agreed that this was "a modest price tag for cost recovery." Compton told us in an email: " 'Profit' is out of the question, in my mind. I would say that whoever opined about 'profit' knows very little about the effort and expense involved in providing human biospecimens for research purposes." [FactCheck.org, 7/21/15]

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